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In yesterday’s Washington Post, a headline proclaimed: “Saudi Arabia is Facing Unprecedented Scrutiny from Congress.” The article focused on a recently defeated Senate bill which sought to express disapproval of a pending $1.15 billion arms sale to Saudi Arabia. Unfortunately, though the presence of a genuine debate on U.S. support for Saudi Arabia – and the ongoing war in Yemen – is a good sign, Congress has so far been unable to turn this debate into any meaningful action.

Yesterday’s resolution, proposed by Kentucky Senator Rand Paul and Connecticut Senator Chris Murphy, would have been primarily symbolic. Indeed, support for the bill wasn’t really about impacting Saudi Arabia’s military capacity. As co-sponsor Sen. Al Franken noted, “the very fact that we are voting on it today sends a very important message to the kingdom of Saudi Arabia that we are watching your actions closely and that the United States is not going to turn a blind eye to the indiscriminate killing of men, women and children.” This message was intended as much for the White House as for the Saudi government, with supporters arguing that the Obama administration should rethink its logistical support for the war in Yemen.

Unfortunately, opponents of the measure carried the day, and the resolution was defeated 71-26. These senators mostly argued that the importance of supporting regional allies outweighed any problems. Yet in doing so, they sought to avoid debate on the many problems in today’s U.S.-Saudi relationship. In addition to the war in Yemen – which is in many ways directly detrimental to U.S. national security interests, destabilizing that country and allowing for the growth of extremist groups there – Saudi Arabia’s actions across the Middle East, and funding of fundamentalism around the world are often at odds with U.S. interests, even as it works closely with the United States on counterterror issues. As a recent New York Times article noted, in the world of violent jihadist extremism, the Saudis are too often “both the arsonists and the firefighters.”

The so-called Islamic State is losing ground. The liberation of Mosul, Iraq’s third most populous city, may be the Baghdad government’s next objective.

Yet even as the “caliphate” shrinks in the Middle East, Daesh, as the group also is known, is increasing its murderous attacks on Western civilians. Washington’s intervention actually has endangered Americans.

In contrast to al-Qaeda, which always conducted terrorism, ISIS originally focused on creating a caliphate, or quasi-state. Daesh’s territorial designed conflicted with many nations in the Mideast: Iraq, Syria, Iran, Turkey, Libya, Jordan, Lebanon, and the Gulf kingdoms.

The Obama administration did not intervene out of necessity: ISIS ignored America. Moreover, the movement faced enemies which collectively had a million men under arms; several possessed sophisticated air forces.

Washington’s concern for those being killed by the Islamic State was real, but casualties lagged well behind the number of deaths in other lands routinely ignored by the U.S. The administration seemed most motivated by the sadistic murder of two Americans who had been captured by ISIS in Syria. Although barbaric, these acts did not justify intervention in another Mideast war.

In a prominent article about Islamic State in the Washington Post over the weekend, Carol Morell and Jody Warrick suggest that, by massacring people in various locales, the group was growing in appeal—or “allure” in the words of the headline writer. How this remarkable process comes about is not explained, nor is evidence given to back it up. It is said to be a conclusion reached by “experts,” but only one of these is quoted in the article, and none of the quotes from him seems to fit, much less support, the article’s conclusion.

There is certainly evidence, much of it noted in other articles in the Post, to suggest that the appeal (or allure) of the vicious group actually is, like the scope of the territory it holds in Syria and Iraq, in severe decline. By 2016, the flow of foreign fighters going to join the group may have dropped by 90 percent over the previous year even as opposition to the group among Arab teens and young adults rose from 60 percent to 80 percent. Any allure the group may have in Iraq certainly fails to register on a poll conducted there in January 2016 in which 99 percent of Shiites and 95 percent of Sunnis express opposition to it. And, according to the FBI, the trend for Americans seeking to join Islamic State is decidedly downward.

Indeed, overall, the Islamic State has followed policies and military approaches that have repeatedly proven to be counterproductive in the extreme in enhancing its “appeal” and/or “allure.” High among these was the utterly mindless webcast beheadings of American hostages in 2014 that turned the United States almost overnight from a wary spectator into a dedicated military opponent.

The Constitution gives the power to declare war to the legislative branch. In recent decades, however, members of Congress have preferred to leave the hard decisions to the president. This constitutional abdication has allowed unilateral war-making.

Even President Barack Obama, who tossed the issue of Syria’s use of chemical weapons to Congress, has relied on the outdated authorization passed after the terrorist attacks of 9/11 to validate multiple military operations today.

Congress could make a bad situation worse. Representatives Scott Perry (R-PA), Matt Salmon (R-AZ), and Cynthia Lummis (R-WY) have introduced H.J. Res. 84,”Authorization for Use of Military Force Against Islamist Extremism.” It would create a long list of target “organizations that support Islamist extremism,” many of which have done nothing against America.

It is a bad bill.

First, a country normally declares war against entities, not philosophies. What matters is not whether a nation or group is Islamist but whether it endangers America.

Second, the threat to the U.S. and other nations is violent extremism, not extremism. It doesn’t particularly matter if people have seemingly kooky ideas on how to live if they do not kill and otherwise harm others.

Third, war should be reserved for responding to threats to America. In World War II Washington declared war on specific countries, most notably Japan and Germany, not on fascism.

Yet Representatives Perry, Salmon, and Lummis came up with numerous new enemies: “the Islamic State, Al-Qaeda, Al-Qaeda in the Arabian Peninsula, Al-Qaeda in the Islamic Maghreb, Al Shabab, Boko Haram, Al-Nusra Front, the Haqqani-Network, the Taliban, Houthis, Khorasan Group, Hamas, Hezbollah, and any substantial supporters, associated forces, or closely related successor entities to any of such organizations.”

The proposed choice of enemies well illustrates the problem of U.S. foreign policy. The Islamic State did not turn to terrorism against America or Europe until Washington and its allies took over the fight against the putative caliphate. Had Washington left the battle to those in the region threatened by the Islamic State—essentially everyone—the group likely would be devoting its terrorist energies elsewhere.

In the wake of the terrorist attacks in Brussels this week, presidential candidate and senator Ted Cruz called for increased law enforcement activity in American Muslim communities:

We must empower law enforcement to patrol and secure Muslim neighborhoods before they become radicalized.

Pressed to clarify his remarks, Sen. Cruz called for the resurrection and nationalization of a now-defunct NYPD surveillance program directed at the Muslim community in and around New York City. He argued that the “successful” program was shut down due to an excess of political correctness, leaving New Yorkers more vulnerable to the threat of terrorism.

The problem: even ignoring political correctness, the NYPD program was a failure by any reasonable standard.

In the aftermath of 9/11, the NYPD established a surveillance-based Demographics Unit. The goal of this unit was to “map” certain (almost entirely Muslim) communities in and around New York City, placing them under expansive police surveillance in order to sniff out would-be terrorists before they could launch attacks.

To achieve this mandate, the police infiltrated mosques, set up surveillance cameras around Muslim-owned businesses and residences, went undercover to monitor everyday conversations, and even infiltrated student groups at schools as far away as Yale and the University of Pennsylvania in order to monitor what students talked about, who they spoke to, and how often they prayed.

The end result of years of Demographic Unit surveillance on American Muslims was… nothing.

That’s not to say there were never any terrorist threats in New York during this time period, only that the expansive “patrolling and securing” of Muslim neighborhoods failed to produce any actionable intelligence about them. A 2013 New York Magazine article contains an illustrative example:

In September 2009, the National Security Agency intercepted an e-mail from a taxi driver named Najibullah Zazi to an e-mail address linked to one of Al Qaeda’s most senior leaders. The message contained the line “the marriage is ready.”

Marriage and wedding were among Al Qaeda’s favorite code words for attacks, referring to the day that a suicide bomber met his brides, the maidens of the hereafter.

Trying to ascertain the scope of the plot, the NYPD searched the files of the Demographics Unit. Even though the rakers had canvassed Zazi’s neighborhood daily, and had even visited the travel agent where he bought his tickets between New York and Colorado, there was not a single piece of useful information. “There was nothing,” said [NYPD Lt. Hector] Berdecia.

In 2011, the Associated Press began publishing an in-depth exposé on the program, which spawned calls for reform and a wave of litigation against the city. By the time Bill de Blasio took office as mayor in 2014, the program had largely wound down, and the unit was eventually disbanded entirely.

There is little evidence that program made New Yorkers any safer. What the program undoubtedly did is cost millions of tax dollars and thousands of law enforcement man-hours that could have been spent investigating actual criminal behavior.

Sen. Cruz’s campaign also claimed that the end of the program made it more difficult for the NYPD to work with the Muslim community:

In New York City, Mayor de Blasio succumbed to unfounded criticisms and eliminated the efforts of law enforcement to work with Muslim communities to stop radical Islamic terrorism.

According to the NYPD itself and advocates within the New York Muslim community, the opposite is true. The NYPD program understandably alienated the local Muslim community and generated immense distrust between Muslim Americans and law enforcement.

While there is scant evidence that the NYPD program generated much in the way of actionable intelligence, it did generate civil rights and constitutional litigation against New York City. Several suits have been settled, with costs ranging in the millions of dollars.

Meanwhile, another suit in New Jersey remains on the docket. Last October, the Third Circuit Court of Appeals issued a strongly worded opinion reinstating a lawsuit against the NYPD surveillance program, invoking several of the darkest civil liberties violations in our history to explain why the suit should proceed:

No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights. “[H]istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”

[…]

Today it is acknowledged, for instance, that the F.D.R. Administration and military authorities infringed the constitutional rights of Japanese-Americans during World War II by placing them under curfew and removing them from their West Coast homes and into internment camps. Yet when these citizens pleaded with the courts to uphold their constitutional rights, we passively accepted the Government’s representations that the use of such classifications was necessary to the national interest. […] In doing so, we failed to recognize that the discriminatory treatment of approximately 120,000 persons of Japanese ancestry was fueled not by military necessity but unfounded fears.

[…]

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight – that “[l]oyalty is a matter of the heart and mind[,] not race, creed or color.”

Recycling failed, constitutionally-dubious policies is not a solution to terrorism, nor is singling out a largely law-abiding minority community for even more invasive government surveillance than it already endures. Police are already empowered to investigate criminal activity, and to patrol any neighborhood they like. But the power to select entire neighborhoods or communities for intense police surveillance based solely on the ethnicity or religion is a power the police don’t need and shouldn’t have.

With this in mind, I was moderately inclined to go along with President Obama’s plan to attack the Islamic State in Iraq and Syria (ISIS), provided that he defined a limited and achievable set of goals, and therefore established limits on the size and scope of the U.S. military mission.

“All that we have to do is to send two mujahedeen to the furthest point east to raise a piece of cloth on which is written al Qaeda, in order to make generals race there to cause America to suffer human, economic and political losses without their achieving anything of note…”

Though they didn’t race there, a team of U.S. special forces eventually made their way to Pakistan and pumped a couple of bullets into bin Laden, so he’s not making these videos any more. That seems worthy. If we can repeat these sorts of operations elsewhere, and shut up a few more loudmouths, we should.

But the larger point stands. We shouldn’t terrorize ourselves. We shouldn’t exaggerate the threat posed by terrorism. And we shouldn’t react in ways that feed the terrorists’ narrative, or serve the terrorists’ goals.

I was pleased to see last week that Professor Epstein had penned a response to my criticism of his recent piece on Hoover’s Defining Ideas in which he argued against treating protection of civil liberties and privacy as “nonnegotiable” in the context of counterterrorism. It is not the disagreement that is pleasing, of course, but the opportunity to air it, which can foster discussion of these issues among libertarians while illustrating to the broader world how seriously libertarians take both security and liberty.

What’s most important in Professor Epstein’s rejoinder is what comes at the end. He says that I should “comment constructively on serious proposals” rather than take an a priori position that civil liberties and privacy will often impede expansions of government power proposed in the name of counterterrorism.

I believe that Professor Epstein and I share the same prior commitments–to limited government, free markets, and peace. Having left it implicit before, I’ll state that I, too, believe that protection of life and property is the primary function of the state. But I also believe that excesses in pursuit of security can cost society and our liberties more than they produce in benefits.

Some years of work on counterterrorism, civil liberties, and privacy bring me to my conclusions. I had put in a half-decade of work on privacy before my six years of service on the Department of Homeland Security’s privacy advisory committee began in 2005. While interacting with numerous DHS components and their programs, I helped produce the DHS Privacy Committee’s risk-management-oriented “Framework for Privacy Analysis of Programs, Technologies, and Applications.” From time to time, I’ve also examined programs in the Science and Technology Directorate at DHS through the Homeland Security Institute. My direct knowledge of the issues in counterterrorism pales in comparison to the 30+ experts my Cato colleagues and I convened in private and public conferences in 2009 and 2010, of course, but my analysis benefitted from that experience and from co-editing the Cato book: Terrorizing Ourselves: Why U.S. Counterterrorism Policy is Failing and How to Fix It.

Whether I’m operating from an inappropriate a priori position or not, I don’t accept Professor Epstein’s shift of the burden. I will certainly comment constructively when the opportunity arises, but it is up to the government, its defenders, and here Professor Epstein to show that security programs are within the government’s constitutional powers, that such programs are not otherwise proscribed by the constitution, and that they cost-effectively make our society more secure.

The latter two questions are collapsed somewhat by the Fourth Amendment’s requirement of reasonableness, or “fit” between means and ends when a search or seizure occurs. And to the extent I can discern the program that Professor Epstein prefers, I have commented on it as constructively as I can.